MANILA, Philippines—The Constitution provides that chief justices (in fact, all justices and judges) are to be appointed by the president from a list of candidates prepared by the Judicial and Bar Council (JBC). Thus, the JBC started two months ago the process of vetting candidates in anticipation of the retirement of Chief Justice Reynato S. Puno on May 17 this year.

Midnight ban. The Charter likewise provides that “two months before the next presidential election, up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”

Voting 9-3, the Court—in De Castro vs JBC (March 17, 2010)—ruled that the constitutional ban on “midnight appointments” does not apply to the chief magistracy and directed the JBC “to submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May 17, 2010” to enable GMA to appoint Puno’s successor.

The ban was enunciated some 50 years ago when Aytona vs Castillo (Jan. 19, 1962) voided several appointments (including one to the Supreme Court) made by then President Carlos P. Garcia one day before his term expired. Relying on plain common sense and old-fashioned delicadeza, the Court issued this ruling despite the absence of any prohibition in the then Constitution.

The ban was incorporated in the current Constitution upon the suggestion of then Commissioner Hilario G. Davide Jr. In sponsoring the measure in the Constitutional Commission, Davide expressly said that the judiciary was included in the ban to prevent a “President (from) prolong(ing) his rule indirectly by appointing people to these sensitive positions.”

Unanimous understanding. In Re Valenzuela (Nov. 9, 1998), the Court unanimously ruled that the ban applied to the judiciary, including the Supreme Court. It “instructed (the JBC) to defer all action… to fill up the lone vacancy in the Supreme Court or any other vacancy.” Significantly, the Valenzuela case was penned by then Chief Justice Andres R. Narvasa, concurred in by all the justices, including three who later became chiefs, Davide, Puno and me. To stress, Davide, who sponsored the midnight ban in the Constitutional Commission, concurred with the Narvasa decision.

Clearly, the prohibition encompasses appointments in the entire judiciary. This is how the ban was understood over the last five decades since it was judicially originated in Aytona vs Castillo; this is how the ban was understood by the commission that drafted the Constitution; this is how the ban was understood by our people when they ratified the present Constitution; this is how our Supreme Court plainly interpreted it in 1998 in Re Valenzuela.

And this is how all the past presidents of this country (including Ferdinand Marcos) understood and honored the ban: by not appointing any one to the judiciary during the prohibited period. Sadly, this 50-year clear understanding of the ban is now being twisted to accommodate the wish of GMA’s allies for her to name not just the 14 incumbent justices (which she has already done) but also the chief justice. Obviously, they want both an Arroyo Court and an Arroyo Chief Justice.

It is claimed that the ban does not apply to the Supreme Court because the Constitution also requires that “any vacancy (in the Court) shall be filled within 90 days from the occurrence thereof.” As held in the Valenzuela case, this 90-day limit for appointing justices is legally suspended during the ban and begins to run only after June 30. Even if it is not deemed suspended, the 90-day period ends on Aug. 15, thereby giving the new president 45 days to choose the new chief justice.

The Judiciary Act of 1948 wisely provided that “in case of a vacancy in the Office of the Chief Justice or of his inability to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence.” In like manner, now that Chief Justice Puno is on leave, the most senior justice has taken over as acting chief without any complaint from any of the other justices. Indeed, over the last 100 years, an acting CJ has always taken over whenever the CJ was on leave.

Solution to impasse. The majority’s decision is perceived by our enraged people as a craven effort to legitimize the wishes of the President, regardless of how the constitutional ban had been understood and obeyed during the last 50 years. It has definitely eroded the high moral ascendancy of the highest court of the land. It is bad enough that the tribunal is now freely labeled as the “Arroyo Court.” Worse, the appointee will be ingloriously branded the “midnight chief justice.”

How can the Court shed these stinging labels and recover public trust? One way would be for it to reverse the decision on reconsideration. But given the lopsided 9-3 original vote, an about-face is unlikely. The easier way would be for the President to heed the advice of her presidential bet, Gibo Teodoro: refrain from naming a midnight chief justice. After all, the Court did not command her to appoint one; it merely directed the JBC to submit the list of nominees.

Indeed, should she announce her respect for the ban now, she would muffle public outcry against the Court and would give Teodoro much needed support to climb the poll surveys. In the end, it is really GMA’s call to save the Court and to boost her bet’s electoral chances.